The Western Australian Jurist, vol 3, 2012 245 THE RISE OF LEGAL POSITIVISM IN GERMANY: A PRELUDE TO NAZI ARBITRARINESS? * KENNY YANG I INTRODUCTION The paper will first look at the rise of legal positivism that left the door ajar for Nazi arbitrariness to enter the system, and how in adopting a separation of ‘is’ and ‘ought’ approach to the law, it left the German legal profession little theoretical resources to resist such arbitrariness. The paper will then juxtapose a hypothetical: whether natural law might have offered better theoretical resources to resist such arbitrariness and conclude with a brief reflection of the dangers of such a strict separation of ‘is’ and ‘ought’ to legal analysis if we are to learn from history and wish to avoid a repeat of the atrocities of the Nazi system. II LEGAL POSITIVISM: THE SEPARATION THESIS A The ius and lex divide Legal positivists believe that the question of what is the law is separate from, and must be kept separate from, the question of what the law ought to be.1 Legal positivism is thus distinguished by two claims: that the law is * Final year LLB (Hons) student at Murdoch University. This essay was selected for publication as one of the top essays in the Legal Theory Unit in 2012. 1 Brian Bix, Jurisprudence Theory and Concept (Sweet & Maxwell, 2nd ed, 1999) 31. 246 Yang, The Rise of Legal Positivism in Germany separable from its substantive morality and that there is no necessary link between law and morality.2 Evinced in Hart’s recognition rule, the ‘master test for legal validity’,3 it ‘points to the separation of the identification of the law from its moral evaluation, and the separation of statements of what the law is from statements about what it should be’.4 In the words of John Austin: The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or not be conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it...5 Additionally, Hans Kelsen’s ‘reine Rechtslehre’, or ‘pure theory of law’, describes the law and attempts to eliminate from the object of this description everything that is not strictly ‘law’.6 He proposes ‘freeing the science of law from alien elements’.7 This ‘pure’ theory of law then may be studied without reference to political, moral or sociological notions. Legal positivism is study the science of law as separate and independent from morality and notions of ethics.8 Law (lex) does not have any necessary connection with justice (ius) and accordingly, what is can be distinguished 2 David Richards, ‘Terror and the Law’ (1983) 5 Human Rights Quarterly 171, 172; Lloyd L Weinreb, ‘Law As Order’ (1978) 91 Harvard Law Review 909, 909. 3 Jonathan Crowe, Legal Theory (Thompson Reuters, 2009) 52. 4 H L A Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 (4) Harvard Law Review 593, 618; Bix, above n 1, 36. 5 John Austin, The Province of Jurisprudence Determined (Cambridge University Press: 1995) 157. 6 Ibid 52. 7 Crowe, above n 3, 36; Hans Kelsen, The Pure Theory of Law Pt II (1935) 51 Law Quarterly Review 1. 8 Steven J Burton, ‘Ronald Dworkin and Legal Positivism’ (1987) 73 Iowa Law Review 109, 114. The Western Australian Jurist, vol 3, 2012 247 from what ought to be. By separating the ‘is’ from the ‘ought’ in legal analysis, positivists have expelled morality and ethics from jurisprudence.9 B The Rise of Legal Positivism in Germany Prior to the influence of legal positivism in Germany, the ius and lex divide was less pronounced. Indeed as Radbruch noted, the study of law in Germany was once under the curriculum title ‘The Law of Nature’,10 reflecting its inseparability from justice and morality. While the exact historical origins of legal positivism are open to debate,11 it is ‘rooted in the empiricist interpretation of the scientific revolution’. 12 The nineteenth century saw a series of significant events such as the French revolution and the scientific and industrial developments in Europe at the time, notably under the influence of the ‘Darwinian Age’.13 Technological, economic and scientific progress saw a human endeavour to pursue enlightenment through a scientific, objective approach. In light of this, the natural law, seemingly based on a subjective, ‘mystical’morality entered hibernation (until its resurgence marked by the Nuremburg principles) as it was set 9 Michael Dawkins, Social Darwinism in European and American thought, 1860- 1945 (Cambridge University Press, 1997) 90, cited in Augusto Zimmermann, Legislating Evil: The Philosophical Foundations of the Nazi Legal System (2010) 13 International Trade and Business Law Review 221, 232. Though Hans Kelsen was himself expelled from his position at the University of Cologne. 10 J M Kelly, A Short History of Western Legal Theory (Oxford University Press, 2007) 379. 11 Crowe, above n 3, 29. In retrospect, traces of positivism can be seen in Greek and Roman philosophy, see Mark Tebbit, Philosophy of Law: An Introduction (Routledge, 2005) 15. 12 Mark Tebbit, Philosophy of Law: An Introduction (Routledge, 2005) 15. 13 E Hambloch, German Rampant: A Study in Economic Materialism (Duckworth, 1939) 14. 248 Yang, The Rise of Legal Positivism in Germany aside in favour of legal positivism, an approach that seemed objective, discernable and therefore more appropriate. III THE FREE LAW MOVEMENT A discussion of the rise of legal positivism in Germany would not be complete without a word on the Free Law Movement that emerged from the German School of Historical Law. While not entirely aligned with the school of legal positivism, it did somewhat assist in the demise of natural law by firing the first shots against it. The German School of Historical Law,14 based on the work of Friedrich Carl von Savigny and Gustav Hugo, emphasised the historical limitations of the law and stood in opposition to natural law.15 Savigny approached law as an expression of the convictions of a specific people.16 Law according to him, was not grounded in universal principles, but in a organic, growing consciousness of the spirit of the people, the Volksgeist, which adapts itself to the evolving needs of society. This translated into the idea that the state can be defined as a political organism comprising many legal agreements between smaller entities.17 14 The Historical School of Law lead the framework for the German conceptual jurisprudence Begriffsjuriprudenz (which considered social, economic, moral, political or religious considerations irrelevant to jurisprudence) and later Gesetzepositivismus (legal positivism), Walter Ott and Frankzika Buob, ‘Did Legal Positivism Render German Jurists Defenceless During the Third Reich?’ (1993) 2 Social and Legal Studies 91, 95. 15 Ibid. 16 Augusto Zimmermann, Legislating Evil: The Philosophical Foundations of the Nazi Legal System (2010) 13 International Trade and Business Law Review 221, 232. 17 J Seitzer and C Thornhill, ‘An Introduction to Carl Schmitt’s Constitutional Theory: Issues and Context’, in Carl Schmidtt, Constitutional Theory (Duke University Press, 2008) 12. The Western Australian Jurist, vol 3, 2012 249 This subsequently resulted in a disinterest in individual rights in favour of ‘the sovereignty of the state’.18 However, in asking for the legal system to respect particular habits of a people, and to examine the law from a historical approach, the historicist thesis eventually resulted in a form of legal and moral relativism.19 As Leo Strauss noted, the problem with historicism ‘is that all societies have their ideals, cannibal society no less than civilised ones…If principles are sufficiently justified by the fact that they are accepted by a society, the principles of cannibalism are as defensible or sound as those of civilised life’.20 This thus found fertile ground for radical Nazi justification of heinous laws. Finally, the German School of Historical Law in some ways paved the way to legal positivism as it led to a school of jurists whose work culminated in a form of positivism.21 It was hoped that this new positivist approach to law could assist in building a new national legal system to unify the politically fragmented nation.22 This approach of ‘law is law’23 therefore was predominant in Germany before the Nazi take-over.24 18 Abraham Kuyper, Lectures on Calvinism (Hendrickson, 2008) 75. 19 Kelly, above n 10, 324. 20 Leo Strauss, Natural Right and History (Chicago University Press, 1965) 3. 21 Kelly, above n 10, 324. 22 Ibid. 23 Thomas Mertens, But was it law? (2006) 7 German Law Journal 191, 192. 24 Ibid; James E Herget, Contemporary German Legal Philosophy (University Of Pennsylvania Press, 1996) 1. 250 Yang, The Rise of Legal Positivism in Germany IV POSITIVISM AND ITS ROLE IN DISARMING GERMAN JUSTICE AND LEGITIMISING NAZI AUTHORITY There are of course, a number of other factors which could be attributed to the legal profession’s lack of resistance against Nazi authority. Müller contends that the German legal profession’s inherent ‘loyalty to state leadership’ 25 found a feeling of obligation to the Nazi government authority.26 It has also been suggested that a number of German legal professionals, dissatisfied with liberalism at the time of the Nazi’s rise to power, already supported them in different ways.27 As Kaufmann wrote, when the National Socialists intruded upon basic rights, the only audible sound was applause.28 These factors aside though, it is hard to deny that legal positivism, in its strict insistence on the division of law and morality, permitted the legal profession to rationalise to themselves and others their interpretation and application of laws that they might have, upon reflection, considered to be grotesque.29 Sufficed to say, while legal positivism may not have been the sole cause in the German legal profession’s lack of resistance, it nonetheless is a relevant one.